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Saturday, September 29, 2012

Supreme Court to Hear Major Human Rights Case Again: Much More at Stake the Second Time Around

Guest Post by Tyler
Giannini & Susan Farbstein

Susan Farbstein & Tyler
Giannini

The Supreme
Court will open its new term on Monday. The
first argument it hears will be Kiobel v.
Royal Dutch Petroleum Co., the most significant human rights case to reach
the Court in recent years. Intense
interest in the case has generated more than 80 amicus curiae briefs from a range of actors around the world,
including governments, human rights organizations, and corporations. Kiobel
is especially intriguing not only because of the human rights issues at stake,
but also because it will be the Court’s secondtime hearing oral argument in the matter. This is a rarity; the last example was Citizen United, the major campaign
finance case.

What are the
issues?

Kiobel is an Alien Tort Statute (“ATS”) suit
based on a 1789 statute that allows non-U.S. citizens to bring civil claims in
U.S. federal courts for universally recognized violations of international
law.The case arises out of allegations
that Royal Dutch/Shell was complicit in killings and other abuses by the
Nigerian government in the 1990s.The
Court first heard Kiobel last February,
addressing the question of whether
corporations can be held liable under the statute.But in an unusual move, a week later the
Court requested supplemental briefing and a second oral argument.

At the first oral
argument in February, it quickly became clear that some of the justices were
interested in additional questions beyond corporate liability.Specifically, they asked about whether the
ATS permits claims that arise out of actions that take place on foreign soil
(in this case, Nigeria).This question—whether,
and when, the ATS allows such suits—was the focus of the supplemental briefing
and will be addressed in the second oral argument.

As the Petitioners
and their amici have explained, the
text of the statute, as well as its history, show that the ATS does allow for
cases arising on foreign soil.It was
intended to provide a remedy for universal violations, including piracy, which
by definition occur outside the United States.For example, one of the earliest interpretations of the ATS, by Attorney
General William Bradford in 1795, involved pillage and plunder committed during
a raid on the British colony of Sierra Leone.

What is at
stake?

On the
question of corporate liability, Shell’s lawyers have advocated for a
categorical rule: there should be no corporate liability under the statute
under any circumstances. Shell’s lawyers
are proposing a similarly absolutist rule on the question of
extraterritoriality: plaintiffs should never be allowed to bring ATS claims for
violations occurring outside the United States.This view is in opposition to the U.S. government’s position, and has
drawn the attention of numerous commentators, including John Ruggie, the former
UN Special Representative on business and human rights, who views Shell’s position
as “extraordinarily
far-reaching.”

Shell’s views
raise the stakes of the case.Its stance
on corporate liability departs from more than fifteen years of corporate ATS
jurisprudence.But Shell’s proposed rule
on extraterritoriality would be an even more profound reversal, departing from more
than thirty years of ATS case law.

The first
seminal ATS case—Filártiga, considered
the Brown v. Board of international
human rights litigation in U.S. courts—launched the modern era of ATS jurisprudence
in 1980.Dolly Filártiga brought her
case in New York against the Paraguayan police official who had tortured her
brother to death. The court’s decision
was rooted in the notion that today’s torturers, like eighteenth century
pirates, are the enemies of all mankind.Filártiga was endorsed by the
Supreme Court in its 2004 ATS decision, Sosa
v. Alaverez-Machain.

The categorical
rule now advanced by Shell would close the door to remedies for plaintiffs like
Dolly Filártiga, who wrote before Sosa:
“I am proud to live in a country where human rights are respected, where there
is a way to bring to justice people who have committed horrible atrocities. Now it is up to the Supreme Court to ensure
that truth will continue to triumph over terror.”Her sentiments remain as moving today as they
did then.

What might
happen?

As with so
many cases, it is difficult to make predictions, but most commentators are
focused on Justice Anthony Kennedy as the critical swing vote.Justice Kennedy has been a supporter of
international law and joined the majority in Sosa, which allowed ATS claims to proceed in narrow circumstances
for well-recognized violations of international law.At the same time, Justice Kennedy and the
Court have been notably sympathetic to corporate interests in recent
years.After Monday, we may have a
better sense of what to expect in Kiobel.

The Sosa Court left the door ajar to ATS suits
for universal violations, whether piracy or genocide, whether committed outside
the United States or within its borders. This Court should do the same.Survivors of torture, extrajudicial killing,
crimes against humanity, and war crimes deserve the opportunity to obtain
justice in U.S. courts, just as Dolly Filártiga did more than thirty years ago.

Tyler
Giannini and Susan Farbstein are the co-directors of the International Human
Rights Clinic at Harvard Law School. They are currently co-counsel in two Alien
Tort Statute cases and have submitted amicus
curiae briefs in numerous others, including in support of the Petitioners in
Kiobel v. Royal Dutch Petroleum Co.Giannini
served as one of the architects of Doe v. Unocal, a precedent-setting
suit that settled in 2005. Farbstein was a member of the legal team in Wiwa
v. Royal Dutch Petroleum Co., the companion case to Kiobel that
settled in 2009.